Standing Committee E

[Mr. Eric Illsley in the Chair]

Immigration, Asylum and Nationality Bill

Clause 1 - Variation of leave to enter or remain

Evan Harris: I beg to move amendment No. 85, in clause 1, page 1, line 11, leave out 'the leave was' and insert 'leave was previously'.

Eric Illsley: With this we my discuss the following amendments: No. 89, in clause 1, page 1, line 12, leave out from 'Convention' to end of line 14.
No. 18, in clause 1, page 1, leave out lines 15 to 21. 
No. 19, in clause 1, page 1, line 19, leave out 'and' and insert 'or'. 
No. 70, in clause 1, page 1, line 21, at end insert— 
'( ) After paragraph (g) insert— 
''(ga) a decision that a person is to be removed from the United Kingdom by way of directions under section 10A of the Immigration and Asylum Act 1999'' 
( ) Section 92(2) of the Nationality, Immigration and Asylum Act 2002 (c. 41) shall be amended as follows. 
( ) Leave out ''82(2)(c), (d)(e)(f) and (j)'' and replace with ''82(2)(c), (f), (fa), (fb), (ga) and (j)''.'. 
No. 102, in clause 1, page 1, line 21, at end insert— 
'(fc) No order shall be made under sub-paragraph (fb)(i) unless a draft of the order has been laid before and approved by a resolution of each House of Parliament.'. 
No. 71, in clause 1, page 2, line 14, at end insert— 
'( ) The Immigration and Asylum Act 1999 (c. 33) shall be amended as follows. 
After Section 10 insert— 
''Section 10A 
(1) An immigration officer may decide that directions are to be given for the removal from the UK of a person if the Secretary of State has varied or refused to vary the person's leave to enter or remain with the effect that he has no leave to enter or remain otherwise than under section 10A(3). 
(2) The immigration officer may give directions for the person's removal once the time for giving notice of appeal under section 82(2)(ga) of the Nationality, Immigration and Asylum Act 2002 (c. 41) has expired and no appeal under that subsection is pending. 
(3) The person's leave to enter or remain in the United Kingdom, notwithstanding the variation or refusal to vary his leave to enter or remain, is extended for the period during which no decision under section 10A(1) is taken and an appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002 (c. 41) could be brought against a decision under section 10A(1) and whilst any appeal against that decision is pending.''.'.

Evan Harris: I welcome you to the Chair, Mr. Illsley. It is a pleasure to serve under your chairmanship. I hope that today is not as eventful as yesterday, with warming radiators and faulty microphones, although, on reconsideration, it was not that exciting.
Amendments Nos. 85 and 89 can be considered together. Amendments Nos. 18 and 19 were tabled by the Conservatives to probe the Government's intentions, and I imagine that they will speak to  them. Amendment No. 70 is analogous to amendment No. 77, which we debated yesterday, so if I speak to that amendment at all, it will be only to refer to a letter that I have just received from the Minister in response to my questions about why amendment No. 77 did not provide a satisfactory alternative. I shall also mention amendment No. 71. 
Amendment No. 85 deals with subsection (4), which adds two new categories to the list of definitions of an immigration decision in section 82(2) of the Nationality, Immigration and Asylum Act 2002, and deletes two existing categories under paragraphs (d) and (e) of that section. The two new categories, (fa) and (fb), each have two criteria, under sub-paragraphs (i) and (ii), that must both be fulfilled for a decision to qualify as an immigration decision under one of those definitions. The amendment would amend clause 1(4)(fa)(i). 
Our intention is to probe the Government. Would the proposed new wording allow wider rights of appeal for people who were previously recognised as refugees but who no longer possess refugee status because they married a British citizen, for example, or obtained leave as a work permit holder? I also seek elucidation on the purpose of clause 5, which touches on that issue. One of the bizarre side effects of the change of policy as of 30 August 2005 to grant only five years' leave to enter to refugees and holding a review over their heads is that a refugee would be well advised to switch into a different immigration category, if he or she possibly can, to avoid a review. Will it make a difference if someone was previously granted refugee status but no longer has it? I am not sure that the intentions behind the amendment were clear, and I hope that the Minister will have time to address that. 
Amendment No. 89 would remove clause 1(4)(fa)(ii), thus allowing the relevant person to appeal even if the result of the variation or refusal taking effect does not leave them without leave to enter or remain. The amendment is intended to tackle the key part of the clause. Clearly, it would mean that there would be wider rights of appeal for persons previously recognised as refugees. That relates to the problem that the Government are creating by removing the right to appeal against variation and retaining only the right to appeal against a decision to remove the person. If a decision to remove is issued at the same time as a decision not to vary or extend leave, there is no problem because a person can appeal on the relevant grounds. Often, however, that is not the case, and there are several reasons why that might be. 
First, the person might still have unexpired leave. For example, if a student with one-year leave applies as a spouse and gets turned down with no right of appeal—that is a problem with the existing legislation as well—he or she still will still have unexpired leave. It seems reasonable to dispose of appeals while people are here if we can and they are not otherwise overstaying. 
Secondly, the immigration and nationality directorate is very poor at giving removal decisions, especially in immigration rather than asylum cases. That means that a person can either leave the UK voluntarily or stay and become an overstayer, which is  a criminal offence, in the hope that eventually a removal decision will be made that triggers a right of appeal that he can use to make out his case. For example, a student or work permit holder might apply for an extension, which is refused, but no removal decision is issued, only a refusal to vary leave. That is standard practice. 
A further example would be that of a spouse who applies for settlement at the end of a probationary period and is refused because a sham marriage is alleged or domestic violence allegations are rejected. That person will be made an overstayer by the decision and, because of clause 9, which we are soon to discuss, will have a right of appeal only if a removal decision is made that requires an official in the immigration and nationality directorate to use some initiative. I fear that possibly, or even probably, that will not happen. 
On amendment No. 70, I hope that I have time to read the letter that I have only just picked up from the Table. I am sure that efforts were made to get it to my office, but I did not receive it until a few moments ago. Until I have seen it, I shall not waste time by merely repeating the arguments I made yesterday. 
I shall leave the hon. Member for Walthamstow (Mr. Gerrard) to comment on amendment No. 71. I note that it covers much of the same ground as amendment No. 86 in the next group. If I move that amendment, I will do so only in order to deal with issues that have not been raised under amendment No. 102. 
Amendment No. 71 is substantive. It seeks to probe the intentions behind the relevant part of the clause. It would add a new section 10A into the Immigration and Asylum Act 1999 relating to the ability of immigration officials to provide directions for a person's removal. Clause 1(5), which it amends, inserts a new section 83A into the Nationality, Immigration and Asylum Act 2002, introducing a new right of appeal for people who can no longer be recognised as refugees, but who are permitted to stay here in another category. The amendment does not seek to change that, but would add another section to the 1999 Act after section 10. 
The amendments would enable the Government to make simultaneous variation and removal decisions, thereby presenting an alternative way of curing the perceived mischief of multiple appeals. They would enable the applicant to appeal against the decisions before having to leave the UK, and to stay in the UK while appealing without thereby committing a criminal offence. The point of the amendment is to make it clear that the Government have the power to combine appeals—to provide a ''one-stop''—without doing it in the way proposed in the Bill, which we find unacceptable. 
As the Minister knows, it is currently possible for a person to appeal against a variation decision and, if she loses the appeal, not to have to leave the UK to appeal against a subsequent decision to remove her under section 10 to the 1999 Act. If the Government contend that clause 1, supported by clause 9, is merely intended to deny successive appeal rights, perhaps the  Minister can explain why the Bill does not provide a similar vehicle. 
Why are the Government seeking to establish a procedure that forces people to leave the country and renders them illegally present here until they do, when it is possible to deny successive appeals by making simultaneous variation and removal decisions? Why is the Bill constructed as it is? All that we have heard from the Minister amounts to a desire to streamline the process. He has not really explained why he wishes to criminalise and make life difficult for so many people, many of whom, on the basis of the quality of decisions that we have seen, would make successful appeals. 
I have had a briefing on this matter from the Refugee Children's Consortium which I would like to bring to the Minister's attention, because the part of the clause that we are discussing affects its standing. It relates to section 83 of the 2002 Act. In 2003, 98 per cent. of unaccompanied children were refused asylum. Instead, 73 per cent. of them—a significant proportion—were granted exceptional or discretionary leave for a limited period, the majority purely on the basis that they were children. I do not think that that is contentious. Some of those children do not currently have a right to appeal against the initial decision to refuse them asylum, as section 83 of the 2002 Act precludes appeals from those granted a period of leave to remain of one year or less. That affects children who, for example, are refused asylum and granted discretionary leave after their 17th birthday, who, although they can make an application for further leave to continue after their 18th birthday, are normally refused on the grounds that the original leave was granted only on the basis of age. As initial decisions take some time to process, many 16-year-old applicants are also denied that appeal right. 
Since 1 October 2004, unaccompanied children from Albania, Bulgaria, Jamaica, Macedonia, Moldova, Romania, Serbia and Montenegro, including Kosovo, and Sri Lanka are offered at the most only one year's discretionary leave in the first instance. That group is also affected. They are now deprived of a right to appeal against the initial decision to refuse them asylum. 
In theory, the two groups of unaccompanied minors that I have mentioned will have a right of appeal if they are subsequently granted further leave to remain which results in an aggregate discretionary leave of more than 12 months. However, it is not possible to see from Home Office statistics how many children have been granted an extension and thus have been able to appeal against their initial refusal of asylum by virtue of an aggregated grant of leave of more than 12 months. The first opportunity that those people have to appeal against a refusal to grant them asylum is within their subsequent variation appeals. 
The failure to permit those groups of unaccompanied children a variation appeal will have a very serious consequence. Recent research shows that about 30 per cent. of unaccompanied children had their asylum appeals allowed. Neither the Home Office nor the Department for Constitutional Affairs collects  statistics on the number of unaccompanied children who are still entitled to appeal and who exercise that right, or on the number of unaccompanied minors who succeed in their appeal. 
It is fair to say that my points are relevant and new in respect of those groups of people. To avoid having to bring this up in a clause stand part debate, which we probably would not wish to see proceed too far given the extensive debate that we have had, let me say that I am fundamentally concerned about the Government's general approach. That is the key point. The quality of decisions, which we discussed yesterday when the Minister spoke at length about his hope that everything will change under managed migration—

Tony McNulty: Is changing.

Evan Harris: The Minister says that things are changing under managed migration. The system of allowing people to come into this country or, in the clause that we are discussing, the right to extend their leave creates the group of people who then might apply for an extension of leave. The fact that the system is different or improved by whatever judgment does not fundamentally alter the problem that people face under the new provision if, having got here under whatever system, they seek to extend their leave and find that they cannot vary their leave, that they are criminalised if they stay and that they are less able to appeal effectively because they have to appeal from outside the country, if they bother at all. If anything, the Minister's argument that in the new immigration paradise that will exist when his new system has bedded down—[Interruption.] I do not mean that in a pejorative way. Even if one accepts the assurance that things will be better, the point is that those people may have an even stronger basis for seeking to appeal a poor decision, because they will have got here under a better system.
I hope that the Minister will appreciate that I am not trying to make a snide point. I am saying that even if the new system is fantastic, it creates a greater incentive to ensure that those people who have got here under a more rigorous system are treated fairly in respect of their appeal provisions. The fundamental problem is that until we are all satisfied that the approach being taken by the initial decision makers is better, we cannot think it is logical or sensible to restrict the rights of appeal in the way that is proposed, with the effect that that will have. 
I would be grateful if the Minister could address the point that whatever the system that brings people into this country, the right of appeal must not be altered for those who are seeking to make such changes. I mentioned yesterday that I want us to have a stand part debate on racial discrimination, as that is relevant, and I make that point again now in the hope that you will consider it, Mr. Illsley, given that we have had lengthy debates on other aspects of clause 1. 
As I have yet to read the Minister's response to my comments of yesterday, I hope that he will be generous  in giving way because I may want to probe a number of points, including on amendment No. 70.

Neil Gerrard: I shall speak mainly about amendment No. 102, which I tabled, but will also make passing reference to the lead amendment.
I wish that the first part of subsection (4) was not in the Bill. It relates to the ending of indefinite leave for people given refugee status. Having discussed that in a recent Adjournment debate with the Under-Secretary, I will not repeat the argument, but simply say that perhaps Ministers could think again about the points raised in that debate. 
My amendment relates to proposed new paragraph (fb), which gives powers to the Minister to allow appeals for some people who are applying for a variation of leave. I want to know how the Minister intends those powers to be used, because we have no idea at present. It is important to know who will be covered by those powers. 
I understand from a letter from a Home Office official to the Immigration Law Practitioners Association that the intention is to use the powers to give appeal rights on variation of leave to people who have been given subsidiary protection status—those who have been given humanitarian protection. That is welcome news. However, other groups of people ought to be considered, too. I will not repeat all the arguments made by the hon. Member for Oxford, West and Abingdon (Dr. Harris) about unaccompanied minors. However, the concerns were brought to our attention by the Refugee Children's Consortium, and they are important. If the Minister does not use his powers, some unaccompanied minors might lose the opportunity to appeal to the asylum and immigration tribunal on a refusal to grant asylum. 
Another issue runs through the clause, and I suspect it will come up again when we discuss clause 9. If the Minister cannot clarify the situation now, perhaps he will do so later. One of the concerns about people who are losing appeal rights and who will have suspensive appeals rather than appeals in-country is what happens to them between the point at which the decision is taken to refuse the variation of leave and the removal direction being set, and an appeal conducted out of country. Again, the letter to the Immigration Law Practitioners Association stated: 
''We will be taking steps to ensure that people who have a suspensive right of appeal are not treated as offenders''—
that is, they are not treated as having committed an immigration offence. However, the letter continues: 
''At the moment no decision had yet been made on how this will be accomplished.''
That is a very important point; someone will not be treated as an offender. The issue goes beyond that, however. If someone is not going to be treated as an offender, what does that mean about any rights that they might have? 
On unaccompanied minors and whether they will be covered by the provisions in subsection (4)(fb), many of those children will have been in care and will be  leaving care when they reach 18. That is the point at which a decision will be taken not to grant them any more leave. I have seen cases in which children in that position have received a letter from the Home Office on their 18th birthday, or the day after, which is not a very welcome birthday present. 
Under the Children Act 2004, local authorities still have duties to children who have been in care when they leave care at 18. What will happen to unaccompanied minors? To tell someone who has been in care in this country as an unaccompanied minor and who is leaving care at the age of 18 that they have no further rights to remain in the UK, that a removal direction will be made to remove them, and that they will have the right of a suspensive appeal from an outside country when the removal direction comes into force, is to leave them in an incredibly difficult position. There will be all sorts of pressures and arguments about what the local authorities that have been supporting those children are supposed to do at that time and whether they will be able to carry on supporting them until removal directions are set or not. 
What will happen to people who have been receiving support in one form or another, whether from the National Asylum Support Service, or from a local authority, in the case of unaccompanied minors, when the decision is taken to refuse a variation of leave to the point at which removal directions come into force and they can be removed and exercise their rights of appeal? I envisage all sorts of problems arising.

Cheryl Gillan: I have a great deal of sympathy with the hon. Gentleman. If the Bill is enacted and implemented, does he agree that the decision to refuse further leave will immediately render those young people incapable of working? They will not be able to take a job, and they certainly will not be able to receive benefits. That will have a double-whammy effect on them and leave them in limbo and in purdah.

Neil Gerrard: That seems to be the impact of the Bill. There is a real lack of clarity about what will happen when the decision is taken, particularly in the light of the letter that was sent to ILPA, which said that
''people with a suspensive right of appeal are not going to be treated as offenders.''
What effect will that have on the support given to unaccompanied minors in particular? We are not dealing with people who might have been able to work and who might have a little money in the bank. We are dealing with someone who has been in care, and who has been supported by a local authority. I am concerned about what will happen at that point. 
That is one reason why I ask the Minister to whom subsection 4(fb) will apply, beyond people who have humanitarian protection, and whether he will consider its potential application to unaccompanied minors? Perhaps when we reach later clauses, we shall try to clarify the issue of what entitlements people may or may not have from the point at which the decision to refuse variation of leave is made.

Cheryl Gillan: May I add my welcome to that which was extended by the hon. Member for Oxford, West and Abingdon to you, Mr. Illsley? It is a pleasure to have you in the Chair, and I share the hon. Gentleman's eternal hope that nothing will catch fire during the sitting.
May I also make an unusual comment? There is always an unsung hero during the process of examining and scrutinising legislation, and on this occasion it happens to be Hansard. I was impressed that despite the late hour of our previous sitting and the early hour of our sitting today, Hansard managed to get our proceedings from the first sitting into print. I think that it is to be congratulated on that, particularly as its machine broke down during the earliest stages of the sitting. 
I rise to speak to amendments Nos. 18 and 19, which stand in the names of myself and my hon. Friends. The effect of amendment No. 18 would be to remove subsection (4)(fb), which would allow the Secretary of State to make orders specifying categories of applicant for variation of or refusal to vary a person's limited leave to enter or to remain in the UK, if the result of that variation or refusal is that the person has no leave to enter or to remain. 
The amendments that we debated yesterday would have reinstated the provisions that subsection (4)(fb) seeks to replace, rendering it unnecessary. From that point of view, amendment No. 18 would have been a consequential amendment. As we have not managed to persuade the Minister so far about our arguments, although he is eminently reasonable and open to persuasion, I live in hope that he will see the light and remove subsections (2) and (3). 
My purpose in speaking to the amendment is to probe. There shall be quite a bit of probing during this Bill, because it is unclear from the drafting, notwithstanding the copious amount of notes and assessments that the Department has produced, what exactly is in the mind of the Government. It is not clear to me and my colleagues from the contributions that we have heard so far, and it is certainly not clear to the organisations concerned beyond the confines of the Room, to which categories of applicant the Government intend to extend the benefit. 
I hope that the Minister will outline how the Government will use the order-making powers, and for which types of applicant. I need the Minister to explain further why it is appropriate that all rights of appeal in variation or refusal to vary applications, except for refugees, are abolished, but the power to reinstate in certain cases is reserved. Would it not be more transparent to restrict appeal rights in a more limited way, leaving them intact for the group or groups that he intends should benefit from subsection (4)(fb)? 
There are two advantages to that approach. First, we would know when considering the Bill which groups the Minister intends to deprive of the right of appeal, instead of finding out later when the relevant orders are made specifying the groups that will be allowed to exercise an in-country right of appeal. Will they be caught by the blanket removal? We could then  have a proper debate on the basis of a sound understanding about which group we were discussing when considering the potential impact of the removal of the right of appeal. I hope that the Minister has a grip of that first point.

Tony McNulty: I was telling my hon. Friends why it was wrong.

Cheryl Gillan: Fine. It is always nice to have sedentary comments.
Secondly, those categories of applicant whom the Government intend should retain the right of appeal would have the right protected by primary legislation, instead of being vulnerable to future changes of heart by Ministers. We would like to hear the Minister's views on that protection, particularly because over the past few years we have seen a steady erosion of rights of appeal. We need to know what assurances the Minister can give that any category included in regulations would not at some point be excluded by a future order. If that is the case, what criteria would the Minister use to exclude a category included in an earlier order? I would not feel confident that any group specified by the Secretary of State could be assured that their right of appeal would remain. 
I always worry when I see in legislation deregulated powers or powers left for secondary legislation. The Government are delegating most of the legislation in the Bill, as I read it, and either granting or removing the right of appeal in leave-to-remain cases other than those specified under subsection (4)(fa) is to be determined by regulation. If I am correct, that is a worrying sign. 
The Minister needs to clear up how the Secretary of State envisages using the provisions, not least because those interpreting this legislation will rely on and look to consideration in Committee for explanations and will rely on our thinking. I hope that the Minister will let us know what is in the Secretary of State's mind and his mind, presuming that he has a mind at this stage in the proceedings. Otherwise, we are being sold a pup. I hope that he will elucidate on that point.

Humfrey Malins: My hon. Friend is making a powerful case. In reference to the Government's attitude in general to appeals she will recall, although the Committee might need reminding, that this Government, under the Asylum and Immigration (Treatment of claimants, etc.) Act 2004, sought to oust utterly the jurisdiction of the courts. It was only a combination of ourselves and others who managed to have the courts' position reinstated.

Cheryl Gillan: That comment stands alone, and sits alongside the way in which the powers of jury trial—and many other things—are being eroded by the Government.

Tony McNulty: Do not be tedious.

Cheryl Gillan: The Minister says do not be tedious; it is not a matter of tedium that the power of the jury in our legal system is being eroded, or the powers of the courts. 
My second reason for tabling amendment No. 18 is to put forward some points raised by the organisations that we mentioned yesterday—the ILPA, Universities UK, UKCOSA and the Immigration Advisory Service—about the status of applicants who are refused an extension to their leave or whose leave is curtailed. As the Committee already knows, those organisations are particularly concerned that an individual whose leave has expired while they were applying for an extension or variation of their leave to remain will become an illegal overstayer. Depending on the way in which orders under clause 9 are drafted, the moment that the letter arrives on their door-mat informing them that their application has been unsuccessful they will be an illegal overstayer. 
The point has been raised that an individual, through no fault of their own, could find themselves on the wrong side of immigration law even if that person, having received a letter informing them that they have been refused a variation or extension, picks up their bags and goes immediately to the airport to return to their original home. As I understand it, they will nevertheless be classed as an illegal overstayer. I can see that the Minister acknowledges that by the nod of his head. I shall return to the issue properly, or my hon. Friend the Member for Woking (Mr. Malins) will touch on it, when we reach clause 9. 
Amendment No. 19 would provide that should a person's leave expire as a result of the decision to curtail or not to extend the visa, that person would automatically get a right of appeal against the negative decision. The Secretary of State could then make further provision to other categories of case that would attract the right of appeal as set out in paragraph (fb)(i). That is important because clause 9 removes a safeguard that allows applicants to remain legally in the UK both while their application is being considered beyond the expiry of their current leave and until they have been through the appeal process. 
My intention is to probe the Government on the position of those individuals who, as a result of the provision in clause 1 together with clause 9, would immediately become illegal overstayers on receipt of a refusal to extend a visa. Unless the Secretary of State were to make a blanket provision for all those individuals caught by subsection (4)(fb)(ii), surely some people could not avoid becoming illegal overstayers. That illegality would certainly stamp a migrant with what is commonly known as the ''mark of Cain''. In future, visa applications for such an individual would have to declare that they had failed to comply with the conditions of their visas—a mandatory ground for refusing entry to the UK in immigration law. In addition, while pursuing their appeal, an individual caught by the provisions could, as an illegal overstayer, be denied access to services such as health care. As the hon. Member for Walthamstow suggested, such people could very recently have been minors. 
Leaving aside the question of whether it is sensible that migrants have a one-stop appeal right in respect of refusals to extend visas, and the question of whether that appeal should be at the point of refusal or removal, surely the Government can see the necessity  of providing for all those whose legal right to remain in the UK would expire as soon as the relevant immigration decision had been communicated to them. 
The ILPA in particular has pointed out that at present a clear distinction exists between those who are compliant with immigration law and those who have breached immigration law by overstaying or illegal entry. Under the provisions in the Bill a person will have unlawful status because the legislation alters the nature of their appeal from one against refusal of variation to one against removal. At the same time it removes the provisions allowing the applicant's leave to continue until their appeal has been heard. That change blurs the notion of immigration irregularity. 
I notice that the Minister has tabled amendment No. 56, which appears to provide for the continuation of leave in cases where applicants are protected and given the right of appeal by order under subsection (4)(fb). If that would be the effect of the amendment, which I hope that we shall have the opportunity to discuss later, that is welcome. However, it will offer limited comfort if it extends only to the small number of applicants named in orders made by the Secretary of State under subsection (4)(fb)(i). Even then, those applicants will always be vulnerable to the whims of this and future Secretaries of State, who would be able by order to remove simultaneously the right of appeal and the continuation of leave. 
I hope that the Minister will acknowledge the validity of those arguments. If he will not accept the amendments, I hope that he will return on Report, at the very latest, with a solution to the problem. To summarise, I want to put three clear questions to the Minister. Is it his intention that applicants for leave to remain should get the right of appeal only after their legal right to stay in the UK has expired? If that is the case, is it his intention that the right to appeal against refusal of immigration extension applications should be exercisable only out of country? To which group or groups do the Government intend to extend the right of appeal under subsection (4)(fb)? I hope that the Minister's sources of inspiration have those three questions clearly and are writing suitable notes to give us nice clear replies from the Minister. 
I should like to move on to the point so admirably and fluently raised by the hon. Member for Oxford, West and Abingdon on behalf of the Refugee Children's Consortium. I, too, received that briefing, and I have some additional questions apposite to this group of amendments. The hon. Gentleman mentioned that unaccompanied children from Albania, Bulgaria, Jamaica, Macedonia, Moldova, Romania, Serbia and Montenegro—including Kosovo—and Sri Lanka have, since 1 October 2004, been offered one year's discretionary leave at most in the first instance. I understand that Sri Lanka was the subject of asylum policy unit note 5/2004. That is a perfect example of not even secondary legislation, but a policy note—a policy note!—deciding on the future of children. 
Those children are now deprived also of a right to appeal against the initial decision to refuse them asylum unless, as I understand it, they are minors from  Bangladesh. A court case, R (on the application of Husan) v. Secretary of State for the Home Department [2005] EWHC189, has established that that is not the case for children from Bangladesh. Are we to see as a result of this Government's policy and policy notes more and more cases appearing in the courts? Presumably, that would cost taxpayers money, as I presume that the relevant parties would be entitled to legal aid. Perhaps the Minister will elucidate on that. We will be raising the matter of legal aid later. 
I should like to comment on the letter addressed to the hon. Member for Oxford, West and Abingdon. I am grateful to him for copying it to me. I have not had a chance to analyse it, but it appears that the Minister has failed to answer the questions. First, I still need an answer to the question of why the current powers are not sufficient. Secondly, what happens if someone becomes illegal as a result of a variation decision? Those questions have not been answered in this letter. I am sure that the hon. Member for Oxford, West and Abingdon will want to make his own points about the letter, as it is addressed to him, but it is right for me to bring it up at this stage so that the Minister has a chance to reply before the hon. Gentleman comes back to him. 
Amendments Nos. 70 and 71 would allow the Government to make simultaneous variation on removal decisions and enable the applicant to appeal against the decision before having to leave the UK. They are intended to give unsuccessful applicants the opportunity to appeal quickly against refusals of variation of leave. We have already heard about cases that take months or years to decide and delays that often attend the communication of a decision to remove an individual from the UK. We have heard that unsuccessful applicants for leave to remain might be left waiting for a considerable period before receiving notice of a decision to remove them, which triggers their right of appeal. In such circumstances, they would be left in an extremely uncomfortable position—effectively left in a limbo during which they could not activate their appeal against the original decision. 
I do not know whether amendments Nos. 70 and 71 put forward a workable scheme, but the intention behind them is probably very sensible. I look forward to the Minister's reply to my final, key question on this issue: if the right of appeal depends on a notice of removal being served on an applicant, when will that take place and how long will such an individual have to wait before their right of appeal is activated?

Evan Harris: I am grateful to be able to speak again because I wish to raise four new issues relating to the letter addressed to me, which I have now had the chance to read. I want to comment on amendment No. 102, now that the hon. Member for Walthamstow has spoken to it, and on account of which I shall not move amendment No. 86. I also want to comment on other correspondence, which I have just seen, between the Home Office and ILPA. There is one other question, too, which I do not think has been answered. 
First, as to the letter, amendments Nos. 70 and 77 are intended to find out why the existing measures cannot be used to create the streamlined one-stop appeal for which the Government argue. The Minister's letter to me, of yesterday, states: 
''The amendment states that whether there is a right of appeal against a decision to remove depends on the existence of previous rights of appeal (whether or not exercised) and the issue of a section 96 certificate. If a removal decision was made against someone they would have an appeal right under section 82 (2) (g) (decision to remove an overstayer) or section 82 (2) (i) (decision to remove a family member) of the 2002 Act unless:
that person had had a previous right of appeal (whether exercised or not) under section 82 (2) (d) . . . or (e) . . . and;
the Secretary of State or an immigration officer had issued a certificate under section 98 (earlier right of appeal)''.
The letter also states: 
''This amendment would continue the system of two rights of appeal before removal for all case types except for seamen and aircrew under certain conditions. The addition of an explicit reference to section 96 certification has no substantive effect because the power to certify exists under present legislation''.
The point we want to make is that current rights are enough to give the single comprehensive appeal that the Government want. The letter states: 
''Amendment 77 does no more than current legislation and has the same drawbacks. Certification is useful in some cases but often the circumstances pertaining to the appellant's appeal have changed between the making of the first immigration decision (the decision to curtail or to refuse to extend leave) and the subsequent decision to remove. In these cases it is not possible to issue a certificate under section 96, it is far more effective to create a single, comprehensive right of appeal which would allow all of these issues to be dealt with at the same time.''
However, amendment No. 71 does not involve certificates and it would achieve effectively the same thing; it could be done with the simultaneous issue of the decision and the removal notice. 
Later in the letter, the Minister argues: 
''Another reason for making the changes set out in clauses 1, 3 and 9 rather than accepting amendment 77 is that the issue of a section 96 certificate is a decision which can be judicially reviewed. This creates a further avenue for delay which can be avoided by allowing all immigration decisions to be considered at a single appeal.''
The problem is that that avenue will be used anyway because making a person illegal gives rise to breaches of human rights immediately—in exercise of family life and private life, because those people cannot work and study. The Minister has explained his approach but has not dealt satisfactorily with the question why, if he considers it wrong to make people illegal before they have had a chance to appeal, he cannot use the existing arrangements. 
A further point arises from the discussion that was triggered by amendment No. 102, which focuses on the fact that the Government are making order powers in the clause. The Government reassure us that problems will be taken care of through regulations—that is the point of the provision—and remind us of the power to create a right of appeal by order under new paragraph (fb), which clause 1(4) will insert in section 82(2) of the 2002 Act. However, it would be far better for a  Parliament wanting to scrutinise such an important area if we had certainty and knew now what the categories will be. That would give individuals, education establishments and employers the certainty that they need to enable them to plan. Even if the Minister could give assurances, those would not be cast-iron guarantees in legislation. The current arrangements for the regulations—using, I think, the negative procedure—do not provide the scrutiny that they should. 
The rights of appeal against decisions involving fundamentally important interests should be protected by being embodied in primary legislation and we should be allowed to know the scope of the laws that the Government are seeking to pass and that we are attempting to scrutinise. 
I referred to a letter yesterday. I stated that the Immigration Law Practitioners Association had written to the Home Office about clause 1 and has not yet had a reply. However, it received a letter dated 18 October 2005 from Pam Culley of the appeals and judicial review unit. Clearly, the Minister's team are working hard and we appreciate the ability to discuss these matters in Committee, so I welcome the fact that this has been issued. I want to raise two points. 
First, the letter states: 
''Clauses 1 & 3 together give those who are refused further leave to remain or have their existing leave curtailed a single, comprehensive right of appeal against a decision to remove them from the UK.''
I am told by ILPA, which has had the chance to look at the letter, that there is no reason why the variation appeal cannot be the single comprehensive appeal right used to consider matters relevant to removal as well as the substance of the refusal to vary. I am told that section 85 of the Nationality, Immigration and Asylum Act 2002 allows immigration judges to examine other matters that are raised in appeal. Therefore, legal architecture is already in place for such one-stop variation appeals, but the Minister has yet to give a reason why the Government have declined to use it to achieve the same outcome: a streamlining of the appeals system. 
Secondly, the letter states: 
''Where fundamental issues of human rights, EEA treaty rights or asylum are raised this appeal can generally be exercised in the UK.''
I raised that issue yesterday and the point was reiterated by the hon. Member for Chesham and Amersham (Mrs. Gillan). The problem is that under the Bill a person who is refused variation after their original leave has expired will be rendered illegal on receipt of the decision. To give effect to the assurance I mentioned, the Government need to amend the Bill. Given that they say they are clear about their intentions, there is no reason to leave clauses with the opposite effect in primary legislation. I do not know why they cannot clarify now the fact that they will amend the Bill to make it clear what those areas are.

Tony McNulty: Sit down and see.

Evan Harris: Perhaps the Government will make a concession, because the Minister invites me to wait for his response.
Finally, I want to raise a matter that I do not think we have dealt with before, I would be grateful if the Minister addressed it. Clause 1(4) makes provision for a limited class of people to have an in-country right of appeal against refusal of variation, such as those who have leave to enter or remain as a refugee and are seeking to extend their leave to remain as refugees. 
As we have heard, such people used to be given indefinite leave to remain in the UK, but, since August, are now given leave for five years, after which the Home Office assesses whether there are risk on return. No similar provision is made for those who are applying to vary their leave from a different category from that of refugee or for those who are seeking to vary their leave on human rights grounds. By operation of section 77 of the 2002 Act, those who apply to vary other leave than that of leave of a refugee cannot be removed from the UK, nor are they required to leave until their application and any appeal have been finally decided, but they will, under the provisions, be treated the same as any other overstayer applying for asylum. 
Those who wish to remain on grounds that removal will breach their human rights will, by operation of section 92 of the 2002 Act, be able to remain in the UK while they appeal against a decision to remove them, but they will have to sit and wait without any legal leave for that decision to be made and they will not be allowed to work while they wait for the appeal. I believe that that relates to a new group of people—yet another—who are badly damaged by the construction of this legislation. I would be grateful if the Minister addressed that.

Tony McNulty: I welcome you to our deliberations, Mr. Illsley. As you can see, they are complex but extremely important none the less. I am grateful that you and Sir Nicholas will do an excellent job.
I will quickly give my view on the amendments and then deal with the points of substance, because the two are not necessarily the same. First, I agree with the hon. Member for Chesham and Amersham that her amendments Nos. 18 and 19 are consequential on what we discussed and dispatched yesterday. In that context, she might have been better advised to withdraw them, because on their own they are not terribly helpful either to her cause or to the Bill—not least for the reasons offered by my hon. Friend the Member for Walthamstow. If the new system introduced by the Bill is to prevail, central to it must be the flexibility afforded by proposed new subsection 4(fb). On its own, and without it being a consequence of yesterday's amendment, the hon. Lady's proposal suggests deleting that. Without a further series of consequential amendments to clause 1, all it would do is ''worsen'' the position, for reasons I shall come to. 
I want to respond to points made by members of the Committee and to clarify areas of confusion. First, I am pleased that we are having an extensive debate, but I am troubled, as always, by language. May I gently rebuke the hon. Member for Oxford, West and  Abingdon? Whatever he thinks of the system, he should not besmirch and undermine serious and committed public servants who do a good job. He can talk about the processes and the structures, but he should not make snide comments to the effect that we will have to wait for ever for good decisions from IND staff. That does not add to the debate, and it casts unnecessary aspersions. 
Secondly, the hon. Gentleman should not glibly suggest that, in the circumstances of which we are all aware, those with temporary five-year refugee status rather than indefinite leave to remain might as well spend all their time trying to find another status by which they would be better served. That is profoundly irresponsible. He should think about the extent of the process that people have to go through to get refugee status, whether five years or ILR. If anybody in that position reads Hansard, he will see that a senior Liberal Democrat MP is saying, ''It is only five years, so try to do anything but stay with refugee status.'' That is deeply irresponsible. We can argue about what people think of moving to a five-year term rather than ILR, but his words are not useful or helpful.

Evan Harris: I regret the tone of the Minister's remarks. The record will show what I said, and I do not believe that I used the term ''IND staff''. He can seek to invent terms that I used, but I said that the key question is not simply whether the initial decisions will be better, but that whatever the decisions are—even if they are better—we still have the problem of appeal rights. I shall check, as I was reading from prepared text, what I said in respect of the situation that some refugees find themselves in. If I get a chance to catch the Chairman's eye, I will respond in terms to the Minister's second allegation, which I think is preposterous.

Tony McNulty: Preposterous it might well be, but that is what the hon. Gentleman said. I do not want to go too far down that route, but he did refer to staff making the decisions and suggested that, whatever happens, there will still be faulty decisions. There are serious and complex issues to be discussed, and that is better done without talking about paradise and other snide things that Liberal Democrats usually do, adding poison to our contributions. That is unnecessary; we have had a cordial debate thus far.
As I mentioned, the hon. Member for Chesham and Amersham has already said that amendments Nos. 18 and 19 are consequential and do not do much on their own. Amendment No. 85 would alter clause (1)(4)(fa)(i), presumably to make it clear that the leave referred to is previous leave. By definition, one cannot read this or previous Bills without understanding that, in that context, leave means previous leave. It does not mean future leave. The amendment is entirely unnecessary; the clause defines leave adequately. 
Amendment No. 89 would confer a right of appeal even if the result of a refusal was not to bring the leave to an end. The amendment is unnecessary given the provisions of subsection (5), which allows a discrete right of appeal if it is decided that someone who is no  longer a refugee can continue to enjoy leave on another basis. 
I shall ignore what the hon. Lady said about rules and regulations—secondary versus primary legislation. Anyone and everyone who knows about it knows that far more is done and determined through rules, followed by secondary legislation and then primary legislation. T'was ever thus with immigration.

Humfrey Malins: Especially under this Government

Tony McNulty: I bow to the hon. Gentleman's legal experience, but in political terms I suspect that he is wrong. The balance between legislation and rules since 1971 is a matter of British public policy. As much, if not more, is determined through immigration rules as through legislation. That is not a moot point.

Cheryl Gillan: From his perspective, the Minister is making a valid point, but he should see it also from our perspective. If there is to be no opportunity for detailed scrutiny of legislation—as we are now scrutinising the Bill—concerns must be raised, and rightly so given the sort of consequences envisaged as a result of the provisions in this part of the Bill.

Tony McNulty: I have no problem with the hon. Lady's comments. I merely say that, although she makes an acute and intellectually rigorous political point that more is done through rules under the present Government than under previous Governments, that is not the case. It flies in the face of British public policy as it has evolved.
I want to deal with some of the serious points that have been raised. I am not with my hon. Friend the Member for Walthamstow on negative versus positive resolutions. We can rehearse the reasons—we doubtless will—during our deliberations and at other times. 
I am happy, inasmuch as I can be, during our parliamentary proceedings on this Bill, as with all legislation, at least to offer the Committee guidance on those assorted categories beyond protected or humanitarian status. However, I fundamentally believe that the structure of the Bill, which affords us the flexibility to include other categories of people under subsection (4)(fb), is right and proper. 
I do not profess to know what categories or groups might be appropriate in four or five years' time, but as members of the community have suggested, I am clear about the fact that there should be some scope for some distinction between those with protected and refugee status under the Bill. A gap between those two will provide some useful flexibility. 
I want to consider further what has been said about unaccompanied children; the points were well made. I emphasise—Hansard does not print in capital letters or in bold type; it should in this case—I emphasise that, on reflection and given further discussion, what has been said may help in resolving the question of unaccompanied minors. It is a real issue, and I understand what has been said. However, if we were to omit paragraph (fb), as suggested in amendment No. 18, I would be lost; I could not do what is wanted  for unaccompanied minors. It is a fair point, and we need to explore it. 
The gist of amendments Nos. 70 and 71 is not substantive. It cannot be right. We want to get to a stage where we have a one-stop appeals system. The appeal process on removal is about all the decisions made thus far. It is a comprehensive appeal process. It is not simply an appeal on the removal; that is clear. We are not taking away the first step—the appeal against the original decision—and simply replacing it with the appeal against the decision to remove at removal stage. We are talking about the comprehensive nature of the appeal. 
However, I understand how people can have doubts. I glide over the use of ''disingenuous''. The hon. Member for Oxford, West and Abingdon, has used the ludicrous term ''criminalised'' about 200 times, even though this Committee has been running for only a day and a half. There is confusion about people's status at the tail end of the decision-making process, after the decision to remove, and during the subsequent appeal against removal. I fully accept that. The hon. Member for Chesham and Amersham made the same point. I suspect that there are those—they are beyond these four walls; I do not mean people in this Room—who are ramping that up and who are being a bit disingenuous themselves, but that is what they do, and that is fine. 
We do not intend to criminalise people who can appeal in-country but have no leave while doing so. The offending paragraph is in a lovely historical little document, the Immigration Act 1971; I do not know whether the hon. Member for Oxford, West and Abingdon was in the House when it was introduced. Clause 24(1)(b) of that Act refers to knowingly remaining beyond one's period of leave, with the consequence hanging over the person of prosecutions being brought, and a £200 fine. 
We intend to clarify things, rather than ''give ground'' or ''make a U-turn'' and all that sort of stuff, so that the practice is, as it is now—this is where the disingenuous bit comes in—that people are not pursued, hounded and criminalised between the expiration of their leave and the outcome of their appeal. That is done in a very informal way. If there is confusion in the Bill and in the terms, we will need to amend the Bill and reflect the amendments in the rules. In terms of leave, we must get to a stage—this is a fair point, however disingenuously put by some—at which people are not affected at all until the exhaustion of their last appeal against removal. That is the situation that prevails now, anyway. People are not hounded as overstayers. 
However, it must be right that, under this new system and, indeed, the existing system, people apply for extensions or durations before leave is extended. We are not about to criminalise people, and if we need to reflect that far more readily in the Bill and in the immigration rules, we shall do so.

Neil Gerrard: I am interested in what the Minister says about how the process will be handled. Will he give some attention to the issue of support? People have their support withdrawn, and yet nothing is done  about removal. That is unsatisfactory. When someone is not removed, they should not be left destitute.

Tony McNulty: I take my hon. Friend's point. He knows that the issue is not entirely germane to whether we agree to the amendments, or to clause 1, but it is very important. I want to get to a stage at which all decision-making processes are conflated so that the process, from original decision all the way through, takes a reasonable time but does not impact on the integrity of the decision. We must get straight, across a whole range of fronts, support and other elements of the process. I accept the thrust of what he says, but the situation will not be improved or otherwise as a result of what is left in or out of the clause. That returns to the point that I raised yesterday about the five-year plan and all the other documents of which I promised copies to the Committee—they are on the Table—and the wider backdrop of what we are doing in policy terms on asylum and immigration. The points are fairly made. I hope that the clarity that I shall be able to give on what we must do with the primary legislation in the Bill and with the immigration rules will help the process.
I have discovered in this job—I knew partly already, and it has underlined parts of what we do—that assorted changes to the law have impacted on people both before 1997 and since 1997. One must fully understand not only the individual's decision-making processes but what legislation prevailed when those decisions were made. That makes an already complex position even more complex. The Bill is an attempt to get to a stage of streamlining. The one point on which I agree 100 per cent. with the hon. Member for Oxford, West and Abingdon is that we must consolidate everything in the next year or two if possible, because immigration and asylum law is a bit all over the place. It reminds me in part of employment law in the 1960s and 1970s. It was drip, drip, drip, and then bang—in 1978 we had the Employment Protection (Consolidation) Act to consolidate the lot. Employment law then started to make sense. 
None of the amendments, with the best will in the world and with the greatest respect, offers anything new that would substantively improve the Bill However, I am grateful that they were tabled to prompt debate. Let me be clear: if we need to amend the primary legislation in the Bill to clarify section 24(1)(b) of the 1971 Act, I shall. Equally, if I need to clarify the same point in the immigration rules in relation to the gap between a final decision and the commencement of the appeal process, I shall. 
I shall explore—perhaps not during our deliberations in the next couple of weeks, but certainly at the earliest opportunity—the fair points made by hon. Members about unaccompanied asylum-seeking children and where they would fit into proposed new section 82(2)(fb). If they are not covered under proposed new paragraph (fb) and are a special case—protected individuals on humanitarian grounds—I shall determine what Government policy is on them generally, both in the Bill and in the broader sense. Those are entirely fair points. 
I am not being deliberately dismissive of the amendments, but they do not achieve what the hon.  Members who moved them wanted to achieve. Nor do amendments Nos. 18 and 19, which lost their parent amendment yesterday, add to the Bill. They certainly do not do what the hon. Member for Chesham and Amersham intended.

Cheryl Gillan: As we had this discussion yesterday, this is but layer upon layer. The ramifications and the complexities are very broad. I am heartened by the Minister's generous offer to amend the Bill. It must be asked, however, when the Minister will come back to us with any proposals? Will the proposals be sprung on us at the last minute, or will he return as soon as possible with any improvements to the Bill? I am not proud—amendments that are suggested to me or are tabled off my own bat are imperfect, but they provide the vehicle for discussion. If the legislation is to be altered, particularly clause 1, it would be good for the Committee and the House to have early sight of the proposals. While I am on my feet, Mr. Illsley, the Minister mentioned that he would look at a reasonable time for deciding appeals. What in his view is a reasonable time?

Tony McNulty: Let me return to that point. I am grateful for the hon. Lady's comments. I have never had the great pleasure—I am sure that it is a pleasure, at least a temporary one—of speaking from the other side of Committee. I am sure that if I were to, which, who knows, I may at some stage—not that I am crossing the Floor, I hasten to add—I would accept the hon. Lady's position and would not be proud about whence a victory came.
If amendments are necessary I shall endeavour, to clarify both the rules and the legislation on the gap between the serving of a notice and the final appeal of the removal stage. If we need to table new amendments, as I suspect we do, if only to bring informality into the legislative base above and beyond that brought by the amendments already tabled, I shall do that. I shall also reflect on whether any changes to the immigration rules, which are part of the basis of the matter as well as the legislation, are needed to reflect what people require—some sort of formal legislative statement that people will not be instantly criminalised during the gap between the end of leave to remain and final dispatch of an appeal. I shall happily do that. 
I want to make the gap relating to the appeal process as narrow as possible. As the hon. Member for Woking said from a sedentary position, we shall probably still be considering a period of 18 months to two years from start to finish. That period needs to be put in the context of what I said yesterday. At the moment, the first decision on more than 80 per cent. of new applicants for asylum—the changes we are making to the decision-making process on the broader side are still being worked through—is made in the space of two months. Plenty of improvements need to happen outside of what we are doing in order to truncate the whole process. 
Without being entirely dismissive, I do not think that the amendments offer anything, but they have prompted a good and substantive debate that has  allowed me to explore and clarify the position on the gap between notice being served and the final appeal, and deal with the substantive points made by my hon. Friend the Member for Walthamstow about unaccompanied children seeking asylum. I shall come back to the Committee on that as soon as I can, with the only caveat that it might be after the Committee proceedings, but I shall certainly do so before the scrutiny process is finished. On that basis, I ask that the amendment be withdrawn. 
While I am on my feet, I apologise to the Committee. I am not being discourteous, but about 200 people from the immigration world are waiting for me in the Home Office, so I shall tootle off for about half an hour. I shall return—as MacArthur said—if the Committee is still sitting.

Cheryl Gillan: We shall miss the Minister while he has gone because we might really do business if he continues to act in such a reasonable fashion. I thank him for his generous offer and very much look forward to seeing what his Department comes up with. Obviously, I reserve our right to scrutinise the matter later, but on the basis of his response I have no intention of pressing our amendment to a vote.

Evan Harris: The Minister has indicated that he is a good cop, a bad cop and a does-not-always-answer-the-question cop. I shall deal with those roles in order. [Interruption.] I was not aware that the Minister was leaving straight away. I thought he said in half an hour. It is rather unusual.
In respect of his role as bad cop, I found it remarkable that he should say that I was encouraging refugees to play the system. I said, ''One of the bizarre side effects of the change of policy as of 30 August 2005 to grant only five years' leave to enter to refugees and holding a review over their heads is that a refugee would be well advised to switch into a different immigration category, if he or she possibly can, to avoid a review.'' I do not see how stating an adverse consequence of a decision with which I disagree could possibly be interpreted by anyone—other than someone seeking actively to change the words used—as encouraging people to do anything illicit. Even if we were talking about a legal context, lawyers would be entitled to advise their clients what was in their best interests. If the Minister is going to state that doing so is somehow ultra vires, he ought to raise the matter with the Law Society. He should do that rather than make what I thought were disappointingly negative comments. 
Arguing that to criticise the fact that the system produces so many poor initial decisions is to slight the enormously overworked staff who are dealing with unfit legislation is like arguing that anyone—including the Minister—who criticises the NHS locally or in someone else's area, or in general, is having a go at nurses. I have always thought that that was an argument for the playground rather than a Committee. We often hear it, but it is preposterous. If Ministers are concerned about the welfare of immigration staff—I am not saying that they are not—they ought to compare salaries in this country  with salaries elsewhere. The salary for an executive officer is £18,000 compared with something over £30,000 in Canada. The Minister might well find that better motivated staff make better decisions and that that means that we do not have some of the problems that we are identifying. 
In respect of the Minister's role as good cop—although absent cop might be a more appropriate analogy—I am grateful that he has indicated a willingness to amend the Bill in relation to this clause and its relationship with clause 9, and to amend the immigration rules if necessary. I understand why he could not give a categorical assurance that he would do so, but as he could not I would be grateful on this issue—not the issue of unaccompanied children, and I noted what he said about the timing—if he could clarify as soon as possible, while there is still time for us to move amendments and divide the Committee, whether he is minded to introduce such amendments. Although we may be able to consider them only on Report, having an idea of the shape of the amendments and what they are likely to consist of would not only save time now in respect of my not pressing amendment No. 89—I will not press it in the light of what he said—but will also speed up the consideration of clause 9. If it is possible for him to give us such an indication, it would be most welcome. 
In respect of unaccompanied children, I noted what the Minister said and I echo the remarks made by the hon. Member for Chesham and Amersham. We welcome the fact that he is willing to look at the matter, since it has been raised as a new point. I also draw his attention to the fact that yesterday—this is partly to do with the question not being answered—I raised some European economic area cases and European Union agreement on the European economic area, known as EAA, cases to which these clauses might apply. It will be necessary to reassure us on that before the Bill leaves Committee so that we still have a chance to address it if we want. However, in the light of what has been said, I beg to ask leave to withdraw the amendment. 
Amendment, by leave, withdrawn.

Humfrey Malins: I beg to move amendment No. 12, in clause 1, page 2, line 14, at end insert
''and shall be eligible for legal aid for each appeal.''. 
I am sorry that the Minister is not here to hear our arguments. However, we are delighted that his colleague is here in a ministerial capacity and I look forward to hearing his response, which, knowing him as I do, I am sure will be measured and courteous. 
Proposed new section 83A, at the top of page 2, is very significant. It represents a major development in our asylum and refugee legislation during the past few years. It is well known that the refugee convention does not require someone who is recognised as a refugee to be allowed to remain in the host country indefinitely, but the granting of indefinite leave to remain has been practised for some years to encourage integration, which is important and all parties should focus on it. 
That policy changed in August when the Government reversed it. They changed it during the recess; no legislation was needed, as it was simply a change of policy, and refugees are now granted five years of permission to stay. During that five years, if the Minister decides that a country is generally safe and he issues a ministerial declaration, all cases from that country will be reviewed. If a person reaches the end of the five years without being reviewed, they can apply for settlement. 
In that context, proposed new section 83A is a positive development because it ensures that anybody who has had their case reviewed during the five years will have a right of appeal if their refugee status is withdrawn. The amendment would ensure that that person is entitled to public funding for the purposes of an appeal against the withdrawal of refugee status. In truth, the right of appeal would be worthless without legal aid public funding being available to enable someone to pursue their case. We have not heard enough from the Government about that. 
I think you know, Mr. Illsley, as others may, that I had the great privilege of being the founder of the Immigration Advisory Service some years ago. I have taken great interest in matters involving public funding and legal aid over several years, as have hon. Members on both sides of the Committee. The hon. Member for Walthamstow, who has contributed so much to our debates over the years, and the hon. Member for Dover (Gwyn Prosser), with whom I was closely involved in matters relating to asylum and the like when we were on the Home Affairs Committee, are present. The hon. Member for Dover takes a deep interest in the subject, as do all Committee members. 
It is important that legal aid is available for persons exercising a right of appeal in the scenario under discussion. I have said that the stakes are often very high. My work at the Immigration Advisory Service made it clear to me, and it must be common knowledge, that appellants in the asylum field are almost by definition more vulnerable than many other appellants who go through our courts. Asylum appellants are vulnerable in many ways—perhaps because their health has been incapacitated, either physically through torture, or mentally through some sort of stress associated with their difficult days; because many of them have been unable to obtain any work, and they have no money; or because of the language barrier. 
The Government genuinely want to ensure more integration into our communities, and I congratulate them on those aims, although they are not easily achieved. I would be the first to say that it is not an easy task. The need to speak the English language for those who are settled in this country for a period is important. In pursuance of and to illustrate my argument that legal aid should be available for an appeal on the refugee point, the truth is that some appellants will face the handicap of being unable to speak the language fluently or to understand the legal system in its fine detail. 
Another reason why legal aid should be appropriate is that in such cases, the appellant often has to order expert reports, whether medical or another type, to support the case. There are important distinctions between appellants who are likely to appeal against a decision to curtail, or refuse to extend, a limited leave and many other appellants in the system because of the potential vulnerability of such a person—not always, but sometimes. 
There is an alarming trend in our community for publicly funded lawyers to leave such work. I make no direct criticism of the Government. Frankly, if the Minister for Immigration, Citizenship and Nationality were in his place, I would not dare criticise the Government; he would be angry with me, and I would probably be swiped or thumped. However, there has been a problem with legal aid cuts during the past few years, and such things are worrying indeed to asylum appellants. 
Why are lawyers leaving legal aid work? It is not very remunerative, and the IAS and others tell me that they are so beset by regulations, limits on the time that they can allow for interviews and so on that they find it not worth the candle. There is a problem with publicly funded lawyers in the UK, many of whom are leaving the profession. 
The Legal Services Commission recognises that there are huge deserts throughout the country where no publicly funded lawyer can be found—no one wants to undertake legal aid work. The asylum rights campaign, an umbrella body, makes the same point. It is difficult enough to find a lawyer who will deal with a matter under a legal aid certificate or through public funding, and even more difficult in London. The hon. Member for Walthamstow will be able to comment on that. I remarked a moment ago on his expertise in and commitment to these issues. A report entitled ''Into the Labyrinth'', which was commissioned by the Mayor of London, discusses the problems that vulnerable people in the London area have in finding publicly funded lawyers to work for them. 
There are compelling arguments to the effect that a person who is exercising a right of appeal under subsection (2) of new section 83A must have the opportunity to apply for and be granted legal aid, or to attain some form of public funding for legal services. As I said earlier, the stakes are extremely high for such an appellant—a hearing has the potential dramatically to alter their life. In addition, such appellants are particularly vulnerable. 
The Minister is sympathetic and helpful, and I look forward to his confirmation that, if he is not prepared to accept my amendment, he will give a clear and open undertaking to the Committee that not one single person who appeals under this part of the Bill will be denied the right to legal aid.

Evan Harris: I am still reeling from the departure of the Minister. May I take this opportunity to welcome to the Committee the Under-Secretary of State for the Home Department, the hon. Member for Leigh (Andy Burnham)? I am sure that he will do a superb job on this part of the Bill. Since his arrival in the House, I  have looked forward, as I know that he has, to his taking part in Committee debates from a ministerial position.
I also welcome the participation of the hon. Member for Woking in kicking off the amendment. His political and professional expertise in this matter are well regarded and well known. I support his points about the importance of ensuring access to legal aid in these matters.

Andy Burnham: I begin by thanking the hon. Member for Oxford, West and Abingdon for his kind comments, and mainly by thanking the hon. Member for Woking, whose welcome was also extremely kind.
The hon. Member for Woking told us about his extensive and very impressive experience in this area. He has the advantage at least of being born when this fantastic historical document was produced, which is not true of every member of the Committee. 
In response to the points made very eloquently by the hon. Gentleman, I must say that I do not believe there is any real difference between what he and the Government seek to achieve through the clause. He referred to the issue of no longer granting indefinite leave to remain, but granting instead a limited period of leave to remain. We announced that policy in our five-year strategy this February, which, as my hon. Friend the Member for Walthamstow rightly said, we discussed at some length in an Adjournment debate the other evening. 
The measure brings the UK's position into line with the principles of the 1951 refugee convention, so in that sense there is no departure at all; the measure meets the spirit of that convention. It also aligns us with several other countries such as France, Germany, Denmark, Norway and the Netherlands—to name but a few—which also grant temporary leave before offering permanent settlement. 
I assure the hon. Gentleman at the outset that I do not believe there is any real difference between our positions. He is absolutely right to say that we are dealing with vulnerable people. My ministerial brief includes responsibility for refugee integration, to which I assure him I personally attach a great deal of importance. I recognise that we are dealing with people who need help and support in a range of ways, on which my hon. Friend the Member for Walthamstow expanded. We therefore agree on that point. 
I also agree that we need to have an eye to the quality of legal provision and the capacity of the sector to provide that advice. The hon. Member for Woking is correct that there has been a reduction in the overall number of suppliers with immigration contracts. In the last financial year for which we have figures, there was a relatively small reduction—less than 10 per cent.—in the number of suppliers with contracts, but that must be viewed in the context of a sharp decrease in the number of new asylum applications, from 84,000 a few  years ago to 32,000 in 2004–05. We believe that those figures will continue to fall in the years to come. 
The hon. Gentleman would expect me to say that we must have an eye to the size of the legal aid bill. That responsibility is, of course, primarily discharged by the Department for Constitutional Affairs, but he will understand that there is a duty on us all to ensure that the public funds allocated for this purpose are used properly and are targeted on those in most need. The legal aid bill for asylum and immigration cases in 2004–05 was £171 million, which is obviously considerable and accounts for a considerable percentage of the overall legal aid bill. We must have an eye to those issues in considering the hon. Gentleman's amendment. 
If the hon. Gentleman reads the Bill, he will see that there is no suggestion that appellants will not have access to legal representation. They will, of course, continue to have access to controlled legal representation during their appeal, provided—this is the crux of the issue—that they meet the criteria that apply equally to all applications for legal aid. The amendment, however, would, make legal aid available to all, regardless of their means.

Humfrey Malins: I can say to the Minister straight away that it is not my purpose to ensure that legal aid is available to all, regardless of their means, and there is obviously a means and a merits test for everybody who applies for legal aid. However, the Minister referred to appellants having access to controlled legal representation. Is that another way of saying that every appellant will have access to free legal representation, subject to the criteria that we have just mentioned?

Andy Burnham: Forgive me, Mr. Illsley, if I am wrong, but the amendment does broaden eligibility for legal aid to all appellants in the category before us. The hon. Member for Woking rightly says that legal aid is currently available if people meet the financial eligibility and merits test carried out by the Legal Services Commission. We agree in principle that people should continue to have access to free legal representation and advice, but in wanting to preserve that arrangement, the hon. Gentleman has tabled an amendment—I understand his reasons for doing so—that would broaden the range of those eligible for legal aid.
I close by reassuring the hon. Gentleman that we do not intend to shrink the availability of legal aid. We must, of course, have an eye to the pressures on the legal aid budget, but provided that people can meet the tests to which I referred, they will continue to enjoy access to legal aid. There is therefore no good reason to accept the amendment, which could widen the scope of eligibility to legal aid. In asking the hon. Gentleman to withdraw his amendment, I can give him the assurance that we fully expect people to continue to have access to legal aid in the way that they currently do.

Humfrey Malins: I really do want to thank the Minister for a very courteous reply. Although my amendment is not perfectly drafted—that is because I drafted it—it has nevertheless enabled a debate to take place on  legal aid. Of course, I never intended every single appellant to have legal aid, regardless of merits and financial circumstances. The important principle to establish—the Minister has kindly confirmed it, and that was important for us all to hear—is that every appellant will be entitled, subject to the caveats that we mentioned, to make an application and, in proper cases, to be granted free legal help and advice for an appeal. That is a powerful reassurance to many of those who are listening.
I simply end with a plea that the Minister and his colleagues at the Department for Constitutional Affairs, who have a difficult task balancing the books, will always consider carefully the importance of being able to grant public funding to those for whom the stakes are highest in appearing before any court or tribunal. I thank the Minister and I beg to ask leave to withdraw the amendment. 
Amendment, by leave, withdrawn.

Eric Illsley: Before the clause stand part debate, I remind the Committee that there has been extensive debate on clause 1 in our consideration of the amendments, so I expect the debate to be reasonably brief.
Question proposed, That the clause stand part of the Bill.

Evan Harris: I am pleased to have the opportunity to raise the concerns of the Commission for Racial Equality on the impact of the legislation, which is best encapsulated by clauses 1 and 9, on good race relations. I have provided members of the Committee with its briefing, and think it important that we should run through those concerns and ask the Minister to respond.
The Minister will be aware that the CRE has great experience in considering the impact of policy and legislation on good race relations. Indeed, we in the House look to it not for a binding view, but for advice. We should consider the impact of legislation, particularly in areas such as this, in which there is potential for exploitation by extremist groups. The CRE says: 
''In a process where the credibility of the applicant and the sponsor is central to determinations, an oral hearing''—
that implies that the applicant would be present— 
''provides the most effective and fairest means of presenting an appeal and its removal may in practice operate as a denial of access to justice for certain ethnic minority groups. It is also likely to twist the appeals system as appeals may be brought under Human Rights legislation which may not be as appropriate.''
I have drawn that to Ministers' attention before. 
The CRE briefing continues: 
''There is no evidence that consideration has been given to the impact which removal of appeal rights will have on certain ethnic minority communities living in the UK.''
Not all the people who will have diminished appeal rights, as the CRE sees it, under the clause are from ethnic minorities, but a large number will be. The CRE says that the race equality impact assessment conducted by the Home Office on the clauses on  appeal rights, which I have seen, is ''inadequate and unsatisfactory''. It says that the 
''long term consequences will be that certain groups in the UK, definable by their ethnic or national origins, will be denied justice and equal treatment in one part of our legal system. The CRE regards this as a wholly undesirable precedent for a system of justice in a multi-ethnic society.''
I agree. Ministers and the Labour party, with its tradition of promoting race relations, should take that seriously. No one is accusing Ministers of racism, but, in pursuing a policy objective, they should pay attention to that point. 
The CRE briefing goes on: 
''The changes in the appeal rules do not directly refer to settlement. However, they dovetail with regulations that are being put in place that will exacerbate the impact on Good Race Relations. Two changes to settlement are particularly pertinent. Regulations have been placed that award only temporary leave to refugees, who despite a successful claim, may still be returned to their country for a period of up to five years after a successful decision. This is clearly contrary to an agenda of integration and could hamper the promotion of Good Race Relations. Second, the proposal to refuse any route to settlement for low skill workers will have similar consequences.''
I understand that we cannot go into some of those issues now, but we must pay careful attention, in the context of that policy, to the impact of the clause. It is particularly unfortunate that along with the effects of clause 1, the procedure under which refugees were given indefinite leave to remain, which was introduced by a Labour Government in 1998 and welcomed by the Liberal Democrats, is being lost. Immigrants, refugees and people affected by clause 1 feel pressure because of the way in which the media and others treat this matter, and need all the support that they can get. The impact of annual employment checks or the fact that such people are unable to continue lawfully working when they have lost an initial decision on extension or variation—we hope that what the Minister has said will mean that that is ameliorated—is extremely unfortunate. I hope that the Minister will take that to heart. 
However, despite what the Minister said about his intention to ameliorate some matters raised earlier—perhaps in the form of amendments—I am minded to seek to divide the Committee on clause stand part, and I hope that other Committee members will support me. I am minded to do so not least because of what the CRE sees as the impact that the clause will have on good race relations, but also because not only is this approach fundamentally wrong but the Government can achieve their understandable aim of streamlining appeals through existing legislation. I hope that the Minister will respond to the CRE's concerns, and I will seek to press the clause to a Division.

Cheryl Gillan: I do not want to delay the Committee for long on this stand part debate, because we have had a good debate on the clause over nearly one and a half sittings. However, it would be remiss of me not to rise to my feet to thank the Minister for Immigration, Citizenship and Nationality for the undertakings that he has given in Committee today, and to make sure that he is reminded that he gave us an assurance on clause 1 in our first sitting that he would bring forward the points system. He said that we will certainly be clear about the shape of the way forward in terms of  the points system, and he said that on the premise that it will probably be April or May by the time the Bill is finished. That suggested to me that that will happen before the Bill is enacted. I hope that the Under-Secretary will make sure that his colleague is held to that.
I have been reluctant to divide the House on the clause, because I know that the Minister is going to rethink part of it. However, the clause raises many serious matters, and it has attracted a lot of attention from a broad range of organisations. Therefore, I hope that the Government will understand that in pressing the clause to a Division I am not being curmudgeonly; I am doing so to highlight the importance of the clause. We have always agreed in discussions on the clause that the Bill is frontloaded, and pressing the clause to a Division gives it the emphasis that it deserves.

Humfrey Malins: I strongly echo what my hon. Friend has just said: this is a crucial clause. At the end of the day, what we are talking about is rights of appeal. There is a trend, which I am not fond of, for the jurisdiction of the courts gently to be eroded by this Government, as they wish to retain an ever-increasing proportion of decisions that affect people's lives. I do not think that any good Government should ever be frightened of the courts and should ever seek to restrict rights of appeal. I have heard the hon. Member for Walthamstow and others speak eloquently about appeals in the past, which is why I am confident that he and others will, if they do not join us in this vote, indicate by their actions that they have a great deal of sympathy with us.
I remarked in passing on the Government's attempt to restrict rights of appeal and take that out of the jurisdiction of the courts under a Bill that they produced last year. We stopped them doing that, but we did so in the other place. My hon. Friend the Member for Chesham and Amersham made a powerful speech yesterday on the subject of appeals, which dealt with the crucial aspect of the matter, and she quoted what the Prime Minister said when he was shadow Home Secretary. After he said that, he went on to say: 
''The immigration officer who knows that his decision may be subject to appeal is likely to be a good deal more circumspect, careful and even-handed than the officer who knows that his power of decision is absolute.''—[Official Report, 2 November 1992; Vol. 123, c. 43.]
I do not believe that decisions of such gravity as those that are envisaged under clause 1 should be left entirely and only with officials. There is a powerful argument in favour of there being a proper appellate system that is run efficiently. I share my hon. Friend's gratitude to the Minister for the constructive observations that he made when he replied—we look forward to further developments—but as she stressed, the Bill is frontloaded to the extent that this is one of the critical clauses, so it is important for the Opposition to send a united signal, which I hope Government Back Benchers will support, that all  Committee members stand up for the right of appeal and want it to be maintained throughout.

Neil Gerrard: I was not going to speak to this part of the Bill, but I have been tempted by the hon. Gentleman's comments and his confidence that some of us might join him in a Division. I trust that he is not a betting man, as he might be disappointed.
The Minister has made some important remarks, particularly in response to some of the debates today, about being prepared to consider the position of unaccompanied minors and whoever else might be covered by the rights of appeal in clause 4(1)(b). I do hope that he will do so within a time scale that will give us a clear idea of where we are going before Report and Third Reading, if at all possible. That would be extremely helpful to everyone concerned. 
I am afraid that there is often a tendency for everything to be blocked when Members of this House raise such issues, only for a concession to be made immediately when the Bill gets to the Lords. Some of the Minister's responses to the debate have been very positive, and I hope that he will consider the outcome of those responses within a reasonable time scale.

Andy Burnham: We have had a protracted debate on the clause, so I aim to be brief when I sum up my remarks. Some issues of substance have been raised, not least by the hon. Member for Oxford, West and Abingdon, so I shall endeavour to tackle them before we conclude the sitting.
The hon. Gentleman referred to the concerns expressed by the Commission for Racial Equality about clause 1, which he linked to clause 3. It is worth restating at this juncture that the aim is to streamline rights of appeal so that we no longer have a multilayered system. I believe that Opposition Members have agreed with that objective at different times, and these clauses give effect to it. 
The hon. Gentleman used the word ''racist'', although he said that he was not accusing anyone of being that. Let us be absolutely clear; the purpose behind the Bill is to create an immigration and asylum system that functions well, that is efficient, and that has the confidence of the country. We believe that such a system will promote good race relations in this country rather than weaken them. That is the aim of the Bill and of the work that my hon. Friend the Minister for Immigration, Citizenship and Nationality outlined in the five-year strategy, balanced with a point system that is open and welcoming to managed migration. I urge the hon. Gentleman, as my hon. Friend the Minister did today and yesterday, to view the Bill in the context of those other policy initiatives and alongside the managed migration routes that we intend to put into place. It is extremely important that he does so. 
On the hon. Gentleman's points about clause 1 and the comments made by the CRE, the provision will apply equally and will affect all applicants equally. That is the conclusion of the race impact assessment of the Bill. In any appeal against a removal decision, the appellant may contest that the decision was racially discriminatory. Nothing affects those rights. The Department is in regular contact with the CRE, and  listens carefully to it. I can assure the Committee that that will continue. 
The hon. Member for Chesham and Amersham asked about the points system. That is a matter that needs to be considered alongside the Bill. The intention of the points system is to be open and transparent about managed migration routes. People should know where they stand in relation to each tier under which they may seek leave to enter. My hon. Friend the Minister for Immigration, Citizenship and Nationality—he is not here to confirm it, but I do not think that I am putting words into his mouth—gave a commitment yesterday that we would hope to align the work that is being done on the points system with the parliamentary consideration of the Bill. It is impossible to say when we will conclude our consideration, but we want to make available the findings of our consultation on the points system as they emerge, and I urge the hon. Lady to engage in that consultation if she has not already done so. The two should be aligned, and that would be a positive move, as the Bill should be seen in the context of changes to managed migration. 
The hon. Member for Woking made some comments about the courts' jurisdiction ''gently being eroded''. I would like to reassure him that the purpose of the Bill is to ensure that the cases coming before the courts are those that the courts most need to hear—those, as we said earlier, in which an appeal affects vulnerable people. The court should be able to give due weight to appeals that attract a higher appeal right. In the spirit of his earlier remarks about access to legal aid, I hope that he would not demur from that principle. We should be able to devote time to such cases, and to ensure that appeals are brought forward faster than they are at present. 
The clause is not about ousting judicial oversight—far from it. It is about ensuring that there is a single right of appeal, allowing all adverse decisions to be fully heard. We shall come to that in relation to clause 3, which introduces that possibility. The purpose of the Bill is to allow people an enhanced right of appeal at the point of removal, at which stage all relevant factors can be considered. That should lead to the creation of a more sensible appeals process than the one that we have now, for which people can wait for a considerable time. 
My hon. Friend the Member for Walthamstow has made some important interventions in the debate. My hon. Friend the Minister has made commitments with regard to his concerns—particularly those about clause 1(4)(fb) and the other categories of leave that that might include—and on section 24 of the Immigration Act 1971 in relation to the point raised by the hon. Member for Oxford, West and Abingdon about not criminalising anybody whose leave has been curtailed under the system. 
My hon. Friend the Member for Walthamstow has deep knowledge of these matters. I hope that he will take my words as a signal of our wish to have legislation on the statute book that has not been rammed through against people's will, but which  commands confidence because people have been able to engage with what is proposed and to feel that their concerns have been listened to. That is the spirit in which we introduced the Bill. I am grateful for what my hon. Friend said about the comments of my hon. Friend the Minister. However, we shall seek to carry on in the same vein and, of course, to hold true to the commitments that we have given when we introduce further proposals. 
We have had a long debate on clause 1, which is linked to clauses 3 and 9, so we shall return to these issues. With that, I ask hon. Members to ensure that the clause stands part of the Bill. 
Question put, That the clause stand part of the Bill:—
The Committee divided: Ayes 9, Noes 7.

Question accordingly agreed to. 
Clause 1 ordered to stand part of the Bill. 
Clause 2 ordered to stand part of the Bill.

Clause 3 - Grounds of appeal

Question proposed, That the clause stand part of the Bill.

Cheryl Gillan: I rise to put points that have been raised by the Immigration Law Practitioners Association, an eminent body with which I assume all members of the Committee are familiar. The association has prepared a briefing note, and I want to take the opportunity to ask the Minister to respond to its concerns.
A person who loses their right to appeal against a variation—including extension—of leave by the operation of clause 1 will instead be able to appeal against the decision to remove them from the UK. The effect of clause 3(2) is set out in the explanatory notes, which state: 
''Clause 3 works with clause 1; subsection (2) ensures that a person affected by the removal of a right of appeal by Clause 1 has the earlier decision taken into account in an appeal against the later removal decision.''
By virtue of new section 84(1A) of the Nationality, Immigration and Asylum Act 2002, as inserted by clause 3(2), the person appealing against the decision to remove them would also be able to raise grounds of appeal against any decision that 
''gave rise to or facilitated''
the decision to give removal directions against a person. The decision that gave rise to or facilitated the decision to give directions for a person's removal  for having stayed beyond the time limited by their leave might be the previous decision refusing to vary his or her leave—I hope that the Minister is following this. In other words, in appealing against the decision to remove them, the person should be able to challenge the original refusal to vary their leave and the merits of that decision. 
The ILPA thinks that that will be scant comfort to a person who has already become an illegal overstayer, who has had to stop working or studying, who has been forced to leave the UK and who has had it noted in their passport that they were an overstayer. The association believes that the provisions will be of even less comfort than the explanatory notes suggest and that the Bill will not necessarily achieve the objective of allowing people to raise a complaint about the variation decision in an appeal against any subsequent and consequent decision to remove them from the UK. 
The ILPA goes on to say that the reasons for that are rather complicated and technical, and I must admit that I tend to agree. First, clause 3 does not appear to have the effect of allowing an appeal if the tribunal finds that a decision that 
''gave rise to or facilitated the making of the appealable decision''
was wrong. There is the provision that 
''a decision against which the appeal is brought or is treated as being brought was not in accordance with the law . . . or a discretion exercised in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently.''
That is from section 86(3) of the Nationality, Immigration and Asylum Act 2002, with which I am sure the Minister is familiar. 
ILPA states that the clause appears to need to be amended to ensure that a person could win their appeal against the decision to make removal directions on the basis that the original refusal to extend their leave was wrong. It suggests that that could be achieved by providing expressly that 
''for the purpose of section 86(3) such other decision is to be treated as a decision against which the appeal is being brought.''
ILPA would also like the Minister to clarify that it is the Government's intention that the decision to refuse to vary leave in the circumstances envisaged by clauses 1 and 3 is always to be treated as a decision that 
''gave rise to or facilitated''
the decision to remove. ILPA wants to be absolutely clear that people will not be denied the opportunity to call into question the merits of the original refusal to vary leave on a technicality. I know that the Minister will be anxious to respond to ILPA's points, and I look forward to hearing what he has to say.

Andy Burnham: I begin by telling the hon. Lady that the clause has to be read in conjunction with clause 1. It obviously brings in the single appeals system, which is the second part of that system. This is a point that I was going to make to the hon. Member for Woking, but I remind Conservative Members that although I do not know who is currently the favourite in their leadership stakes—

Humfrey Malins: They are all terrific.

Andy Burnham: Nevertheless, the right hon. Member for Haltemprice and Howden (David Davis) said that Conservative Members ''are minded to accept'' the Home Secretary's arguments about appeals. I do not know whether his word carries through to all members of parliamentary Conservative party, but he obviously still has some power. I urge Conservative Members, as long as he is shadow Home Secretary, to bear in mind the comments that he made on Second Reading. He said that he broadly supported the system that we propose.
The purpose of clause 1 is to allow decisions to refuse to vary or curtail leave to be challenged in the course of an appeal against removal. The hon. Member for Chesham and Amersham asked me to clarify that it is our intention to allow appellants to challenge the quality and the decision reached in the initial circumstance so that the first decision could be fully contested at that single appeal. We fully intend to allow that possibility. At that point the appellant would have the ability to raise all of the issues. That is the effect of clause 3. 
Concerns have been raised in the context of clause 1. The hon. Member for Oxford, West and Abingdon was worried about the potential gap between the decision being made to refuse to vary or curtail leave and serving the decision to remove. The intention behind the repeals of section 82(2)(d) and (e) of the 2002 Act is to allow the decision to remove to be served as soon as the decision to refuse to vary or to curtail has been made. The reality is that the affected party will be able to challenge the decision just as quickly as under the current system. I know that in some ways that requires the hon. Gentleman to accept that the administrative changes to be put in place will be made. That is the intention of the clauses as drafted. 
The hon. Member for Chesham and Amersham asked whether the provision will not allow an appeal if the earlier decision is wrong. The way the provisions work is that the challenge to the decision facilitating the decision to remove is one ground of challenge to that decision to remove. I hope she is clear on that point.

Evan Harris: I was listening to the hon. Lady's remarks, because I had the same briefing. While she was reading, I had only to follow.

Cheryl Gillan: That happened with one of the hon. Gentleman's earlier contributions.

Evan Harris: As the hon. Lady says, it happened with one of mine earlier.
A distinction was being made. The ILPA expressed a concern—given its knowledge, it is in a position to do so—that there can be an appeal against the refusal only if it is unlawful, not wrong. Will it be possible for the appeal on removals to consider refusals made on the merits of the application—that it is wrong on balance rather than unlawful?

Andy Burnham: I am grateful to the hon. Gentleman, because, for this clause, that is the heart of the matter. In developing the response to the hon.  Member for Chesham and Amersham, I was going to say that if the asylum and immigration tribunal accepted that the earlier decision either to refuse to vary or to curtail leave was wrong, the appeal against the latter decision to remove would succeed. We are confident that that is the effect of the Bill as drafted.
That relates to the crux of the argument put by the ILPA. I am happy to give the hon. Lady that reassurance on that important point. We believe that providing that system will give the appellant an enhanced right to appeal. They will be able to bring forward at that stage all the arguments I mentioned. They will have ample opportunity to make the case. 
I do not need to detain the Committee much longer. Clause 3 carries through the intention behind clause 1 and conflates the two appeal stages into one. It fulfils a long-standing aim of the Government: to move towards a streamlined appeals system with a one-stop shop appeal. I believe that the Conservative party shares that, given the comments by the right hon. Member for Haltemprice and Howden (David Davis) on Second Reading. Given that, and the reassurance I gave the hon. Member for Chesham and Amersham on the points she has raised, I urge that clause 3 stand part of the Bill.

Cheryl Gillan: It is good to see that the Minister for Immigration, Citizenship and Nationality has joined us again. He might be surprised at the rapid progress we have made in his absence; he could be absent a bit longer.
I understand from the signals I have received that the ILPA is pleased with the probing of this clause stand part debate. Obviously, this is a technical matter, but I am grateful to the Under-Secretary for being so forthright in his assurances. I am sure that if there are any further issues the Minister will hear from that organisation, but at the moment I am satisfied with the response. 
Question put and agreed to. 
Clause 3 ordered to stand part of the Bill.

Clause 4 - Entry clearance

Evan Harris: I beg to move amendment No. 92, in clause 4, page 3, line 3, at beginning insert 'subject to subsection (1A)'.

Eric Illsley: With this it will be convenient to discuss amendment No. 93, in clause 4, page 3, line 9, at end insert—
'(1A) Subsection (1) shall only apply at such time as a review procedure carried out by Immigration Judges on circuit at entry clearance posts is deemed to be operating satisfactorily by the Independent Monitor'.

Evan Harris: Clause 4 is substantial because it deals with entry clearance, and Committee members will have had representations from concerned individuals about that. The quality of initial decision making is a key factor in our judgment of whether the Bill is an appropriate way of dealing with matters.
Amendment No. 93 deals with methods of checking the quality of initial decisions. We want to explore our concerns about their quality and about whether the  measures in clause 4 are an appropriate response. Amendment No. 92 would insert—at the beginning of proposed new section 88A, which the Bill will insert in the 2002 Act—the words ''subject to subsection (1A)''. Subsection (1) of proposed new section 88A states: 
''A person may not appeal under section 82(1) against refusal of an application for entry clearance unless the application was made for the purpose of . . . visiting a person of a class or description prescribed by regulations for the purpose of this subsection, or . . . entering as the dependant of a person in circumstances prescribed by regulations for the purpose of this subsection.''
The amendments would curtail the ability of that part of the provision to have effect until there was some independent reassurance through monitoring of the quality of decisions. That issue is separate from whether we think the clause a good thing in and of itself for natural justice; the amendments deal simply with whether there should first be a stop or a check and also give us an opportunity to air the concerns highlighted by the independent monitor and other independent adjudicators in her and their reports. 
The Government might argue that the amendments, given their narrow scope, are defective and that to achieve their purpose they would need to go into more detail about what the judges on the circuit would do and how the monitor would form her view. However, we do not expect the amendments to be taken literally. We are probing the Minister, in a way only touched on during our discussion of clause 1, on what provisions he is making to guarantee, as far as he can, that decision making will be improved. 
The latest report of the independent monitor—in 2004—stated on page 7 that 
''extrapolating from my file samples in 2002 and 2003 I calculate that 28,000 applicants have been wrongly denied rights of appeal in these two years''.
She is talking about the existing provision, under which people can be denied a right of appeal in certain circumstances. If 28,000 people have been wrongly denied rights of appeal under the existing provisions, it is extremely worrying that tens of thousands more are liable to be added to that number, even before the correctness of initial decisions has been considered. 
The Minister for Immigration, Citizenship and Nationality, who has rejoined us, does not feel that that is the case. He proposes to deny a right of appeal to a range of new categories of person that currently have one. The independent monitor suggests that 28,000 applicants have wrongly been denied rights of appeal under the existing rules because people have been placed in the wrong category. That is a lot of people incorrectly denied access to justice. 
The independent monitor also states in the 2004 report: 
''I also draw attention to the need for a quality analysis of decision-making within UKvisas: I join with the National Audit Office [National Audit Office report Visa Entry to the United Kingdom: The Entry Clearance Operation . . . ] in recommending that UKvisas balance its objectives more evenly between efficiency and quality.''
That is an appropriately polite way of pointing out that there appears to be a problem with the quality of decision making. She states: 
''Good progress has been made in recent years in visa operations becoming more efficient. However, as the National Audit Office elaborates: 'We consider that a more explicit consideration of quality issues in UKvisas' performance measurement framework would encourage a greater emphasis on the quality of decision making.' I understand''— 
and I now understand—
''that UKvisas is now in the process of trying to develop further checks on the quality of decision making.''
Indeed, the letter I received from the Minister sets out some proposals to improve quality. One point that we made under clause 1 relates to the need to ensure that the provisions are brought in first and that quality improves. 
The National Audit Office report also states that 
''UKvisas faces a real challenge in managing the competing priorities of service delivery and control. This is inherent in UKvisas' aim, which is to deliver a quality service whilst ensuring that visas are only issued to those people who meet entry clearance requirements. In the large majority of cases, UKvisas is providing a high quality of service to applicants and sponsors. It is also making significant progress in introducing initiatives to improve its efficiency . . . At the same time, UKvisas recognises that the need to process applications in a timely manner cannot compromise the consideration of whether to issue the visa.''
I believe the Minister is aware of figures that show that there is a real problem. For example, the report states: 
''The global refusal rate has increased from seven per cent in 2000 to 13 per cent in 2002–03. The refusal rate varies widely between posts and different categories of applicant''.
That must be taken with the variation in the success of appeals. 
I understand that if I sit down now, I shall be able to continue tomorrow morning. I am more than willing to do so. 
Debate adjourned.—[Joan Ryan.] 
Adjourned accordingly at two minutes to Seven o'clock till Thursday 20 October at Nine o'clock.